(A) Designation of Floodplain Administrator. The Planning Director, hereinafter referred to as the “Floodplain Administrator”, is hereby appointed to administer and implement the provisions of this article. The Floodplain Administrator may delegate performance of certain duties to other employees. In instances where the Floodplain Administrator receives assistance from others to complete tasks to administer and implement this article, the Floodplain Administrator shall be responsible for the coordination and community’s overall compliance with the National Flood Insurance Program and the provisions of this article.
(B) Floodplain development application, permit and certification requirements.
(1) Application requirements. Application for a floodplain development permit shall be made to the Floodplain Administrator prior to any development activities located within special flood hazard areas. The following items shall be presented to the Floodplain Administrator to apply for a floodplain development permit:
(a) A plot plan drawn to scale which shall include, but shall not be limited to, zoning district, setbacks, percentage impervious surface, building height, area of environmental concern, CAMA setbacks, wetland delineation and the following specific details of the proposed floodplain development:
(i) The nature, location, dimensions and elevations of the area of development/disturbance; existing and proposed structures, utility systems, grading/pavement areas, fill materials, storage areas, drainage facilities and other development;
(ii) The boundary of the special flood hazard area as delineated on the FIRM or other flood map as determined in § 7.03(B), or a statement that the entire lot is within the special flood hazard area;
(iii) Flood zone(s) designation of the proposed development area as determined on the FIRM or other flood map as determined in § 7.03(B);
(iv) The boundary of the floodway(s) or non-encroachment area(s) as determined in § 7.03(B);
(vi) The old and new location of any watercourse that will be altered or relocated as a result of proposed development;
(vii) The boundary and designation date of the coastal barrier resource system (CBRS) area or otherwise protected areas (OPA), if applicable; and
(viii) The certification of the plot plan by a registered land surveyor or professional engineer.
(b) Proposed elevation, and method thereof, of all development within a special flood hazard area including, but not limited to:
(i) Elevation in relation to NAVD 1988 of the proposed reference level of all structures;
(ii) Elevation in relation to NAVD 1988 to which any non-residential structure in Zones A, AE, AH, AO or A99 will be floodproofed; and
(iii) Elevation in relation to NAVD 1988 to which any proposed utility systems will be elevated or floodproofed.
(c) Floodproofing is prohibited in lieu of elevation. However, if non-residential floodproofing is used, a floodproofing certificate (FEMA Form 086-0-34) with supporting data, an operational plan, and an inspection and maintenance plan that include, but are not limited to, installation, exercise and maintenance of floodproofing measures;
(d) A foundation plan, drawn to scale, which shall include details of the proposed foundation system to ensure all provisions of this article are met. These details include, but are not limited to:
(i) The proposed method of elevation, if applicable (i.e., fill, solid foundation perimeter wall, solid backfilled foundation, open foundation on columns/posts/piers/piles/sheer walls);
(ii) Openings to facilitate automatic equalization of hydrostatic flood forces on walls in accordance with § 7.05(B)(4)(d) when solid foundation perimeter walls are used in Zones V, A, AE, AH, AO and A99; and
1) V-Zone certification with accompanying plans and specifications verifying the engineered structure and any breakaway wall designs. Prior to the certificate of compliance/occupancy issuance, the Floodplain Administrator may require that a registered professional engineer or architect certify the finished construction is compliant with the design, specifications and plans for VE Zone construction;
2) Plans for open wood latticework or insect screening, if applicable; and
3) Plans for non-structural fill, if applicable. If non-structural fill is proposed, it must be demonstrated through coastal engineering analysis that the proposed fill would not result in any increase in the BFE or otherwise cause adverse impacts by wave ramping and deflection on to the subject structure or adjacent properties.
(e) Usage details of any enclosed areas below the lowest floor;
(f) Plans and/or details for the protection of public utilities and facilities such as sewer, gas, electrical and water systems to be located and constructed to minimize flood damage;
(g) Certification that all other local, state and federal permits required prior to floodplain development permit issuance have been received;
(h) Documentation for placement of recreational vehicles and/or temporary structures, when applicable, to ensure that the provisions of §§ 7.05(B)(6) and (7) are met; and
(i) A description of proposed watercourse alteration or relocation, when applicable, including an engineering report on the effects of the proposed project on the flood-carrying capacity of the watercourse and the effects to properties located both upstream and downstream; and a map (if not shown on plot plan) showing the location of the proposed watercourse alteration or relocation.
(2) Permit requirements. The floodplain development permit shall include, but not be limited to:
(a) A complete description of all the development to be permitted under the floodplain development permit (i.e. house, garage, pool, septic, bulkhead, cabana, pier, bridge, mining, dredging, filling, grading, paving, excavation or drilling operations, or storage of equipment or materials, etc.);
(b) The special flood hazard area determination for the proposed development in accordance with the available data specified in § 7.03(B);
(c) The regulatory flood protection elevation required for the reference level and all attendant utilities;
(d) The regulatory flood protection elevation required for the protection of all public utilities;
(e) All certification submittal requirements with timelines;
(f) A statement that no fill material or other development shall encroach into the floodway or non-encroachment area of any watercourse unless the requirements of § 7.05(F) have been met;
(g) The flood openings requirements, if in zones A, AE, AH, AO or A99;
(h) Limitations of below BFE enclosure uses (i.e., parking, building access and limited storage only);
(i) A statement that there shall be no alteration of sand dunes which would increase potential flood damage;
(j) A statement that there shall be no fill used for structural support; and
(k) A statement, that all materials below BFE/RFPE must be flood-resistant materials.
(3) Certification requirements.
(a) Plot plans and elevation certificates.
(i) A plot plan and an elevation certificate (FEMA Form 086-0-33) is required prior to the actual start of any new construction. It shall be the duty of the permit holder to submit to the Floodplain Administrator a certification of the elevation of the reference level, in relation to mean sea level. The Floodplain Administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder prior to the beginning of construction. Failure to submit the certification or failure to make required corrections shall be cause to deny a floodplain development permit.
(ii) A foundation plan and an elevation certificate (FEMA Form 086-0-33) is required after the reference level is established. Within seven calendar days of establishment of the reference level elevation, it shall be the duty of the permit holder to submit to the Floodplain Administrator a certification of the elevation of the reference level, in relation to mean sea level. Any work done within the seven-day calendar period and prior to submission of the certification shall be at the permit holder’s risk. The Floodplain Administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to further work being permitted to proceed. Failure to submit the certification or failure to make required corrections shall be cause to issue a stop-work order for the project.
(iii) A final as-built survey and a final finished construction elevation certificate (FEMA Form 086-0-33) is required after construction is completed and prior to certificate of compliance/occupancy issuance. It shall be the duty of the permit holder to submit to the Floodplain Administrator a certification of final as-built construction of the elevation of the reference level and all attendant utilities. The Floodplain Administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to certificate of compliance/occupancy issuance. In some instances, another certification may be required to certify corrected as-built construction. Failure to submit the certification or failure to make required corrections shall be cause to withhold the issuance of a certificate of compliance/occupancy. The finished construction elevation certificate certifier shall provide at least two photographs showing the front and rear of the building taken within 90 days from the date of certification. The photographs must be taken with views confirming the building description and diagram number. To the extent possible, these photographs should show the entire building including foundation. If the building has split-level or multi-level areas, provide at least two additional photographs showing side views of the building. In addition, when applicable, provide a photograph of the foundation showing a representative example of the flood openings or vents. All photographs must be in color and measure at least three inches by three inches. Digital photographs are acceptable.
(b) Floodproofing certificate. Floodproofing is prohibited in lieu of elevation. However, if non-residential floodproofing is used to meet the regulatory flood protection elevation requirements:
(i) A floodproofing certificate (FEMA Form 086-0-34), with supporting data, an operational plan, and an inspection and maintenance plan are required prior to the actual start of any new construction. It shall be the duty of the permit holder to submit to the Floodplain Administrator a certification of the floodproofed design elevation of the reference level and all attendant utilities, in relation to mean sea level. Floodproofing certification shall be prepared by or under the direct supervision of a professional engineer or architect and certified by same. The Floodplain Administrator shall review the certificate data, the operational plan, and the inspection and maintenance plan. Deficiencies detected by such review shall be corrected by the applicant prior to permit approval. Failure to submit the certification or failure to make required corrections shall be cause to deny a floodplain development permit. Failure to construct in accordance with the certified design shall be cause to withhold the issuance of a certificate of compliance/occupancy.
(ii) A final finished construction floodproofing certificate (FEMA Form 086-0-34), with supporting data, an operational plan, and an inspection and maintenance plan are required prior to the issuance of a certificate of compliance/occupancy. It shall be the duty of the permit holder to submit to the Floodplain Administrator a certification of the floodproofed design elevation of the reference level and all attendant utilities, in relation to NAVD 1988. Floodproofing certificate shall be prepared by or under the direct supervision of a professional engineer or architect and certified by same. The Floodplain Administrator shall review the certificate data, the operational plan, and the inspection and maintenance plan. Deficiencies detected by such review shall be corrected by the applicant prior to certificate of occupancy. Failure to submit the certification or failure to make required corrections shall be cause to deny a floodplain development permit. Failure to construct in accordance with the certified design shall be cause to deny a certificate of compliance/occupancy.
(c) Manufactured home. If a manufactured home is placed within Zones A, AE, AH, AO, and A99 and the elevation of the chassis is more than 36 inches in height above grade, an engineered foundation certification is required in accordance with the provisions of § 7.05(B)(3)(b).
(d) Watercourse. If a watercourse is to be altered or relocated, a description of the extent of watercourse alteration or relocation, a professional engineer’s certified report on the effects of the proposed project on the flood-carrying capacity of the watercourse and the effects to properties located both upstream and downstream, and a map showing the location of the proposed watercourse alteration or relocation shall all be submitted by the permit applicant prior to issuance of a floodplain development permit.
(e) Certification exemptions. The following structures, if located within Zones A, AE, AH, AO, and A99, are exempt from the elevation/floodproofing certification requirements specified in items (a) and (b) of this subsection:
(i) Recreational vehicles meeting requirements of § 7.05(B)(6)(a);
(ii) Temporary structures meeting requirements of § 7.05(B)(7); and
(iii) Accessory structures that are 150 square feet or less or that is a minimal investment of $5,000 or less and meeting requirements of § 7.05(B)(8).
(f) V-Zone certification. A V-Zone certification with accompanying design plans and specifications is required prior to issuance of a floodplain development permit within coastal high hazard areas. It shall be the duty of the permit applicant to submit to the Floodplain Administrator said certification to ensure the design standards of this article are met. A registered professional engineer or architect shall develop or review the structural design, plans, and specifications for construction and certify that the design and methods of construction to be used are in accordance with accepted standards of practice for meeting the provisions of this article. This certification is not a substitute for an elevation certificate. Prior to the certificate of compliance/occupancy issuance, the Floodplain Administrator may require that a registered professional engineer or architect certify the finished construction is compliant with the design, specifications and plans for VE Zone construction.
(4) Determinations for existing buildings and structures. For applications for building permits to improve buildings and structures, including alterations, movement, enlargement, replacement, repair, change of occupancy, additions, rehabilitations, renovations, substantial improvements, repairs of substantial damage, and any other improvement of or work on such buildings and structures, the Floodplain Administrator, in coordination with the Building Official, shall:
(a) Estimate the market value, or require the applicant to obtain an appraisal of the market value prepared by a qualified independent appraiser, of the building or structure before the start of construction of the proposed work; in the case of repair, the market value of the building or structure shall be the market value before the damage occurred and before any repairs are made;
(b) Compare the cost to perform the improvement, the cost to repair a damaged building to its pre-damaged condition, or the combined costs of improvements and repairs, if applicable, to the market value of the building or structure;
(c) Determine and document whether the proposed work constitutes substantial improvement or repair of substantial damage; and
(d) Notify the applicant if it is determined that the work constitutes substantial improvement or repair of substantial damage and that compliance with the flood-resistant construction requirements of the North Carolina Building Code and this article is required.
(C) Duties and responsibilities of the Floodplain Administrator. The Floodplain Administrator shall perform, but not be limited to, the following duties:
(1) Review all floodplain development applications and issue permits for all proposed development within special flood hazard areas to assure that the requirements of this article have been satisfied;
(2) Review all proposed development within special flood hazard areas to assure that all necessary local, state and federal permits have been received, including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334;
(3) Notify adjacent communities and the State Department of Public Safety, Division of Emergency Management, State Coordinator for the National Flood Insurance Program prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Emergency Management Agency (FEMA);
(4) Assure that maintenance is provided within the altered or relocated portion of said watercourse so that the flood-carrying capacity is maintained;
(5) Prevent encroachments into floodways and non-encroachment areas unless the certification and flood hazard reduction provisions of § 7.05(F) are met;
(6) Obtain actual elevation (in relation to mean sea level) of the reference level and all attendant utilities of all new and substantially improved structures, in accordance with § 7.04(B)(3);
(7) Obtain actual elevation (in relation to mean sea level) to which all new and substantially improved structures and utilities have been floodproofed, in accordance with the provisions of § 7.04(B)(3);
(8) Obtain actual elevation (in relation to mean sea level) of all public utilities in accordance with the provisions of § 7.04(B)(3);
(10) Where interpretation is needed as to the exact location of boundaries of the special flood hazard areas, floodways or non-encroachment areas (for example, where there appears to be a conflict between a mapped boundary and actual field conditions), make the necessary interpretation. The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in this article;
(11) When BFE data has not been provided in accordance with § 7.03(B), obtain, review and reasonably utilize any BFE data, along with floodway data or non-encroachment area data available from a federal, state or other source, including data developed pursuant to § 7.05(D)(2)(c), in order to administer the provisions of this article;
(12) When BFE data is provided but no floodway or non-encroachment area data has been provided in accordance with § 7.03(B), obtain, review and reasonably utilize any floodway data or non-encroachment area data available from a federal, state or other source in order to administer the provisions of this article;
(13) When the lowest floor and the lowest adjacent grade of a structure or the lowest ground elevation of a parcel in a special flood hazard area is above the BFE, advise the property owner of the option to apply for a letter of map amendment (LOMA) from FEMA. However, if the property is to be removed from the V Zone it must not be located seaward of the landward toe of the primary frontal dune. Maintain a copy of the LOMA issued by FEMA in the floodplain development permit file;
(14) Permanently maintain all records that pertain to the administration of this article and make these records available for public inspection, recognizing that such information may be subject to the Privacy Act of 1974, as amended;
(15) Make on-site inspections of work in progress. As the work pursuant to a floodplain development permit progresses, the Floodplain Administrator shall make as many inspections of the work as may be necessary to ensure that the work is being done according to the provisions of the local article and the terms of the permit. In exercising this power, the Floodplain Administrator has a right, upon presentation of proper credentials, to enter on any premises within the jurisdiction of the community at any reasonable hour for the purposes of inspection or other enforcement action;
(16) Issue stop-work orders as required. Whenever a building or part thereof is being constructed, reconstructed, altered or repaired in violation of this article, the Floodplain Administrator may order the work to be immediately stopped. The stop-work order shall be in writing and directed to the person doing or in charge of the work. The stop-work order shall state the specific work to be stopped, the specific reason(s) for the stoppage, and the condition(s) under which the work may be resumed. Violation of a stop-work order constitutes a misdemeanor;
(17) Revoke floodplain development permits as required. The Floodplain Administrator may revoke and require the return of the floodplain development permit by notifying the permit holder in writing stating the reason(s) for the revocation. Permits shall be revoked for any substantial departure from the approved application, plans and specifications; for refusal or failure to comply with the requirements of state or local laws; or for false statements or misrepresentations made in securing the permit. Any floodplain development permit mistakenly issued in violation of an applicable state or local law may also be revoked;
(18) Make periodic inspections throughout the special flood hazard areas within the jurisdiction of the community. The Floodplain Administrator and each member of his or her inspections department shall have a right, upon presentation of proper credentials, to enter on any premises within the territorial jurisdiction of the department at any reasonable hour for the purposes of inspection or other enforcement action;
(19) Follow through with corrective procedures of § 7.04(D);
(20) Review, provide input and make recommendations for variance requests;
(21) Maintain a current map repository to include, but not limited to, historical and effective FIS report, historical and effective FIRM and other official flood maps and studies adopted in accordance with § 7.03(B), including any revisions thereto including letters of map change, issued by FEMA. Notify state and FEMA of mapping needs; and
(22) Coordinate revisions to FIS reports and FIRMs, including letters of map revision based on fill (LOMR-Fs) and letters of map revision (LOMRs).
(D) Corrective procedures.
(1) Violations to be corrected. When the Floodplain Administrator finds violations of applicable state and local laws, it shall be his or her duty to notify the owner or occupant of the building of the violation. The owner or occupant shall immediately remedy each of the violations of law cited in such notification.
(2) Actions in event of failure to take corrective action. If the owner of a building or property shall fail to take prompt corrective action, the Floodplain Administrator shall give the owner written notice, by certified or registered mail to the owner’s last known address or by personal service, stating:
(a) That the building or property is in violation of the floodplain management regulations;
(b) That a hearing will be held before the Floodplain Administrator at a designated place and time, not later than ten days after the date of the notice, at which time the owner shall be entitled to be heard in person or by counsel and to present arguments and evidence pertaining to the matter; and
(c) That following the hearing, the Floodplain Administrator may issue an order to alter, vacate or demolish the building, or to remove fill as applicable.
(3) Order to take corrective action. If, upon a hearing held pursuant to the notice prescribed above, the Floodplain Administrator shall find that the building or development is in violation of the flood damage prevention article, they shall issue an order in writing to the owner, requiring the owner to remedy the violation within a specified time period, not less than 60 calendar days, nor more than 180 calendar days. Where the Floodplain Administrator finds that there is imminent danger to life or other property, they may order that corrective action be taken in such lesser period as may be feasible.
(4) Appeal. Any owner who has received an order to take corrective action may appeal the order to the local elected governing body by giving notice of appeal in writing to the Floodplain Administrator and the Clerk within ten days following issuance of the final order. In the absence of an appeal, the order of the Floodplain Administrator shall be final. The local governing body shall hear an appeal within a reasonable time and may affirm, modify and affirm, or revoke the order.
(5) Failure to comply with order. If the owner of a building or property fails to comply with an order to take corrective action for which no appeal has been made or fails to comply with an order of the governing body following an appeal, the owner shall be guilty of a Class 1 misdemeanor pursuant to G.S. § 143-215.58 and shall be punished at the discretion of the court.
(E) Variance procedures.
(1) The Board of Adjustment as established by the town, hereinafter referred to as the “Appeal Board”, shall hear and decide requests for variances from the requirements of this article.
(2) Any person aggrieved by the decision of the Appeal Board may appeal such decision to the Court, as provided in G.S. Ch. 7A.
(3) Variances may be issued for:
(a) The repair or rehabilitation of historic structures upon the determination that the proposed repair or rehabilitation will not preclude the structure’s continued designation as a historic structure and that the variance is the minimum necessary to preserve the historic character and design of the structure;
(b) Functionally dependent facilities if determined to meet the definition as stated in Article 11, Definitions, provided provisions of § 7.04(E)(9)(b),(c) and (e) have been satisfied, and such facilities are protected by methods that minimize flood damages during the base flood and create no additional threats to public safety; and
(c) Any other type of development provided it meets the requirements of this section.
(4) In passing upon variances, the Appeal Board shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this article, and:
(a) The danger that materials may be swept onto other lands to the injury of others;
(b) The danger to life and property due to flooding or erosion damage;
(c) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;
(d) The importance of the services provided by the proposed facility to the community;
(e) The necessity to the facility of a waterfront location as defined under Article 11 as a functionally dependent facility, where applicable;
(f) The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;
(g) The compatibility of the proposed use with existing and anticipated development;
(h) The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;
(i) The safety of access to the property in times of flood for ordinary and emergency vehicles;
(j) The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and
(k) The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges.
(5) A written report addressing each of the above factors shall be submitted with the application for a variance.
(6) Upon consideration of the factors listed above and the purposes of this article, the Appeal Board may attach such conditions to the granting of variances as it deems necessary to further the purposes and objectives of this article.
(7) Any applicant to whom a variance is granted shall be given written notice specifying the difference between the BFE and the elevation to which the structure is to be built and that such construction below the BFE increases risks to life and property, and that the issuance of a variance to construct a structure below the BFE may result in increased premium rates for flood insurance up to $25 per $100 of insurance coverage. Such notification shall be maintained with a record of all variance actions, including justification for their issuance.
(8) The Floodplain Administrator shall maintain the records of all appeal actions and report any variances to the FEMA and the state upon request.
(9) Conditions for variances:
(a) Variances shall not be issued when the variance will make the structure in violation of other federal, state or local laws, regulations or ordinances;
(b) Variances shall not be issued within any designated floodway or non- encroachment area if the variance would result in any increase in flood levels during the base flood discharge;
(c) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief;
(d) Variances shall only be issued prior to development permit approval; and
(e) Variances shall only be issued upon:
(i) A showing of good and sufficient cause;
(ii) A determination that failure to grant the variance would result in exceptional hardship; and
(iii) A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or this article.
(10) A variance may be issued for solid waste disposal facilities or sites, hazardous waste management facilities, salvage yards and chemical storage facilities that are in special flood hazard areas if all of the following conditions are met.
(a) The use serves a critical need in the community;
(b) No feasible location exists for the use outside the special flood hazard area;
(c) The reference level of any structure is elevated or floodproofed to at least the regulatory flood protection elevation;
(d) The use complies with all other applicable federal, state and local laws; and
(e) The town has notified the Secretary of the State Department of Public Safety of its intention to grant a variance at least 30 calendar days prior to granting the variance.
(Ord. passed 4-2-2009; Ord. passed 11-2-2011; Ord. passed 11-3-2016; Ord. 2020-01, passed 6-4-2020; Ord. passed 10-1-2020)